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[council] Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden

  • To: George Kirikos <gkirikos@xxxxxxxxx>
  • Subject: [council] Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden
  • From: Ross Rader <ross@xxxxxxxxxx>
  • Date: Wed, 23 Aug 2006 12:41:20 -0400
  • Cc: registrars@xxxxxxxxxxxxxx, council@xxxxxxxxxxxxxx, twomey@xxxxxxxxx, cerf@xxxxxxxxx
  • In-reply-to: <mailman.477.1156350901.2743.domains-gen@discuss.tucows.com>
  • Newsgroups: tucows.services.domains.general
  • Organization: Tucows Inc.
  • References: <mailman.477.1156350901.2743.domains-gen@discuss.tucows.com>
  • Reply-to: ross@xxxxxxxxxx
  • Sender: owner-council@xxxxxxxxxxxxxx
  • User-agent: Thunderbird (Windows/20060719)

Yes of course, but the price for the Registry Service (new registrations and renewal registrations) would have to increase equally in order for the service being provided by the Registry to stay the same. They are allowed to price whatever they want for new registrations and renewals, which is a blanketing statement. Singling out specific domains for different pricing treatment would, IMHO, require the deployment of a new registry service.

And keep in mind that I'm not arguing against your view, I'm simply stating that a) I hope you are wrong and b) you should be wrong and c) that an ICANN that thinks you are right is completely and totally out of touch with reality.

George Kirikos wrote:
Hi again,

[I can't post to the Registrars or Council lists, so someone would have
to forward it]

--- Ross Rader <ross@xxxxxxxxxx> wrote:
George - I  understand what you've laid out, but your analysis
ignores the fact that the contract is for the provisioning of initial registration and renewal of those registration of domain names, not specific domain names. I don't see how one could possible interpret the definition of these services to include tiered pricing for the services based on new criteria that don't fix the existing definition of the current registry services.

In other words, the registries have a contract to provide
registration services for all names in the namespace at the prices included in the

They are still providing registration services for all names. They are
still providing it for prices that are "in the agreement".

The contracts specifically state an initial fee, one that is identical
for all domains. However, registries are free to amend the pricing
schedule in any way they see fit, as long as it is not in a manner
forbidden by the contract.
They do not have a contract for the provision of some of these
services at one price, and the provision of the same service to other people at a different price. i.e. there is no registry service that provides for the sale of specific domain names, there is only a registry service that provides for the sale of new registrations and renewed registrations in the entire namespace. There is a huge difference between the sale of a domain name, and registration in a namespace.

A price schedule is perfectly consistent with pages 80 and 81 of:


The first sentence of page 80 is:

"Initial Registration. Registrar agrees to pay the non-refundable
amounts as set forth below: "

and it contains a box below.

Registrar announces, and gives 6 months notice, that the box has
changed as follows (as an example):

sex.biz -- $100,000/yr
music.biz -- $60,000/yr
google.biz -- $1 billion/yr
kirikos.biz -- $100 billion/yr <<--- Neustar loves me :)
ghkghs.biz -- 10 cents/yr

These sure look like "non-refundable amounts" to me, and are "set forth

The words on page 81 are "Registry Operator reserves the right to
increase the Fees set forth above prospectively upon six months advance
notice to Registrar."

A price schedule fits that definition. That table of values can be
called "fees". There can be many other possible forms. Only forms that
do not provide equal access to all registrars are forbidden, i.e. due
to section 7.1 of page 17:


 Fees have been increased, with six months notice. They have increased
by varying amounts (indeed, some have DECREASED, but that's ok too).
The contract does not forbid this.
I can't believe that Vint has lost track of this distinction. And if
he has, if ICANN has, we are all in much worse shape than we thought.

"3.1 (b)(v) In addition to the other limitations on Consensus Policies, they shall not: 3.1 (b)(v)(A) prescribe or limit the price of Registry Services;"

(from page 4 of
http://www.icann.org/tlds/agreements/biz/registry-agmt-28jul06.pdf )

ICANN can't prescribe


"To set down as a rule or guide; enjoin. See synonyms at dictate.; To
order the use of (a medicine or other treatment). To establish rules,
laws, or directions."

or limit


"To confine or restrict within a boundary or bounds. ; To fix
definitely; to specify."

the price of registry services. A pricing schedule is perfectly
consistent with the meaning of those words, i.e. not forbidden. How
else would volume pricing be able to be implemented, except through a
table of some sort, a modification of page 80's box? Since there do not
appear to be any words that prescribe or place limits on what goes in
the box (besides 7.1 for equal access amongst registrars),
differential/tiered domain by domain pricing can go into that box.

All one needs to do is find the specific words in the contract that
forbid that confine how that box can change. John Jeffrey couldn't,
neither could external counsel, or 2 other registrars (who've not gone
public so I won't name them), that's why Vint confirmed the
interpretation. I'd be happy if there was a limit on how that box could
change. Until someone finds that limit by pointing to a line in the
contract, or adds a term to the contract to create a limitation, then
differential/tiered pricing might become a reality.

I asked Jeff Neuman on the GA list directly, after a series of messages
back and forth (all archived) precisely the following:


"As a sign of good faith, would Neustar agree as a simple matter that
the draft contracts be amended to forbid differential pricing on a
domain-by-domain basis, i.e. to forbid .tv-style non-neutral and
discriminatory pricing?"

Jeff chose that moment to stop participation in the discussions (he
hasn't posted since).

One can read the full archives,
http://gnso.icann.org/mailing-lists/archives/ga/index.html , starting
from July 29th or so, and working to the present.

Registry says:


" In other words, do you really think .BIZ could get away with raising
prices above
 that for a .com domain name and survive?  We do not."

I challenge him directly on that, i.e. if what he says is true, then
why not agree to caps? You can follow the thread and see where that

If the registries agree to amend the contracts, there is no issue. i.e.
one can clarify the language to be more explicit and not permit these
differing opinions (in which I appear to be in the majority view at
present, although occasionally the majority is incorrect). With
language that has perfect clarity, there'd be unanimity as to what the
contract allows and does not allow. Ask yourself, why won't the
registries agree to clarify it? Is it because the contract is "perfect"
and can't be improved upon, or is it because they agree with my
interpretation, Vint's interpretation, John Jeffrey's interpretation,
external counsel's interpretation, and want to reserve the right to do
as they please later?

3 phone calls, one to each registry operator, to see if they wish to
add clarity to the contract. See what they say. Would ICANN have any
reason to not accept that added clarity? What's their great
fear....that, egads, registrants might be protected??!???

George Kirikos

George Kirikos wrote:
Hi Ross,

Here's my analysis of the .biz variation of the contract (the .info
.org are similar, albeit different page numbers, etc.).  I'm not a
member of the Registars Constituency or Council lists, so you'd
need to
forward this reply to them.

You can confirm with John Jeffrey or Vint Cerf that they don't
with the interpretation, namely that nothing in the new contracts
forbids tiered/differential pricing on a domain by domain basis:

A] The contract between the registry and registrars must be "non
discriminatory", as per Article 7 (section 7.1) of the main
(page 17 of the .biz version):


But, if you read the language very carefully, all it talks about is
equal access, equal treatment. It does not forbid a pricing
for different domain names (i.e. .tv has this differential
B] When one views pages 80 and 81 of the Appendix document (Exhibit

the last sentence does not prescribe any restriction on how prices
increase, or forbid differential pricing. Indeed, a
registry could immediately announce that the fees in Appendix E are
replaced by a table of values, e.g. sex.biz = $100,000/yr,
music.biz =
$50,000/yr, gsjkhgkjshgs.biz = $1/yr, and so on, or other formulas.
Remember, volume pricing is already allowed by the existing
That volume pricing is a schedule, too (albeit of a different
There's no restriction on the type of schedule, it just must be
consistent with A] above (i.e. registry can't have a different
schedule for Tucows, GoDaddy, NSI, etc.).

C] Nothing  in Section 4.1 (page 64) prevents it either. And since
3.1(b)(V)(A) [page 4 of the main contract] prevents consensus
from influencing pricing, one can't fix this problem later.

D] The only place I could find where fees are fixed on a domain by
domain basis are the fees the registry operator pays to ICANN (i.e.
page 18 of the main contract, section 7.2). Of course, the
seek cost certainty and non-discrimination for themselves. :) This
doesn't affect pricing to registrars, though, and through them to
registrants --- it would still
appear that the registries could introduce price schedules on a
differential domain-by-domain basis (in any manner they choose;
e.g. if
they don't like the owners of pussy.org, a porn site, they  could
the price be $1 billion/yr to force out the owner, albeit after a
10-year time lag), if my interpretation is correct and I didn't

E] There are lots of other problems with these new contracts (i.e.
presumptive  renewal, elimination of price caps, use of traffic
etc.), so even if  the above issue is "fixed", I'd be against them,
especially before the DoC  rules on the .com settlement agreement,
the lawsuits (e.g. by www.cfit.info) are concluded.

ICANN's lawyers have even said in the CFIT court case documents
price controls in a single supplier market are pro-competitive, so
lifting the price caps is very hypocritical. These bad new
would create a dangerous precedent for VeriSign to exploit in
contract negotiations over operation of the .com registry. I
on this at:


Note that this issue could easily be solved, the loophole removed,
having ICANN add one sentence to each contract, dictating that
prices must be identical for all domains. Ask yourself why ICANN
the registries won't add that sentence. I've been pressing them for
weeks on this issue, and they're sticking to their guns, even after
agreeing on my interpretation of what's not forbidden. Their
is that the 6-month price increase notice period and the ability to
renew for 10 years is sufficient to prevent a "suicide" move by
registries. Ask yourself if you're willing to trust registries
open Pandora's Box. I'll be around in 10+ years, God willing. I'll
current ICANN Board members won't be on the board in 10 years.

BTW, see the eloquent comments of Frank Schilling (of
NameAdministration), who has also posted on this matter:



George Kirikos

--- Ross Rader <ross@xxxxxxxxxx> wrote:

(I have cc'ed this to both the Council and Registrar lists as
George's message has popped up on both of these lists and I would like to
more from my colleagues in those circles on this subject...)

George Kirikos wrote:

--- JB <info@xxxxxxx> wrote:
Or holding an auction for a popular name to find it's market
My reading of the contracts is that they wouldn't be allowed to
hold a
traditional English auction for the domain name, because they'd
have to
set a price on an equal basis for all registrars. It might be
though, as the contracts are so poorly written.
Poorly written indeed.

I would like to hear the basis for ICANN's opinion. My read of
contracts is very different (keep in mind that IANAL, NDIPOOTV) in
that the combination of the registry services provisions, and the definition of the registry service itself prevents per domain price discrimination, in the absence of a different registry service specifically
to allow for this type of pricing.

i.e. the new contracts state;

Main Agreement,  "3.1 (d)(iii) Registry Services are, for purposes
of this Agreement, defined as the following: (a) those
services that are both (i) operations of the registry critical to
the following tasks: the receipt of data from registrars
concerning registrations of domain names and name
servers; provision to registrars of status information relating
to the zone servers for the TLD; dissemination of TLD zone
files; operation of the registry zone servers; and
dissemination of contact and other information concerning
domain name server registrations in the TLD as required by
this Agreement; and (ii) provided by the Registry Operator
for the .biz registry as of the Effective Date as set forth on
Appendix 9; (b) other products or services that the Registry
Operator is required to provide because of the establishment
of a Consensus Policy (as defined in Section 3.1(b) above);
(c) any other products or services that only a registry
operator is capable of providing, by reason of its designation
as the registry operator; and (d) material changes to any
Registry Service within the scope of (a), (b) or (c) above.

Appendix 8, "4.1.1 Registrar agrees to pay Registry Operator the
set forth in Exhibit E for initial and renewal registrations and
other services provided by Registry Operator to Registrar (collectively,
"Fees"). Registry Operator reserves the right to increase the Fees
prospectively upon six (6) months prior notice to Registrar."

Exhibit E to Appendix 8, "Initial Registration Fe(Per Domain Name)
$5.30, Renewal Fee (Per Domain Name) US $5.30"

In other words, one of the existing Registry Services is providing
initial registrations in the .biz namespace. The price for this
service is currently $5.30. This price for this service may be revised
six months notice.

There are no provisions for any service that provides the registry
with the capability to reserve specific names and make them available through other means. There are only provisions for registry services for initial and renewal registrations. The wording of these provisions makes
very clear that the pricing of these services is for all initial and renewal registrations, not for specific initial or renewal registrations based on the string of the domain.

I can't for one second believe that Vint's interpretation is in
way correct and I'd like to hear an absolute official determination
on the existing definition of registry services as outlined in these proposed agreements. If your interpretation is correct, the entire
definition of registry services is flawed in that it would
mean that Registry Services includes variations on Initial and
Renewal registrations that aren't specifically covered in the existing agreement (i.e. the registry can provide whatever variations on these two services it wants without going through the Registry Services Approval




                 "Don't be too timid and squeamish about your
                                            All life is an
                             The more experiments you make the
                         - Ralph Waldo Emerson

Contact Info:

Ross Rader
Director, Research & Innovation
Tucows Inc.
t. 416.538.5492
c. 416.828.8783

Get Started: http://start.tucows.com
My Blogware: http://www.byte.org
domains-gen mailing list




                 "Don't be too timid and squeamish about your
                                            All life is an
                             The more experiments you make the
                         - Ralph Waldo Emerson

Contact Info:

Ross Rader
Director, Research & Innovation
Tucows Inc.
t. 416.538.5492
c. 416.828.8783

Get Started: http://start.tucows.com
My Blogware: http://www.byte.org
domains-gen mailing list




                "Don't be too timid and squeamish about your actions.
                                           All life is an experiment.
                            The more experiments you make the better."
                        - Ralph Waldo Emerson

Contact Info:

Ross Rader
Director, Research & Innovation
Tucows Inc.
t. 416.538.5492
c. 416.828.8783

Get Started: http://start.tucows.com
My Blogware: http://www.byte.org

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